03-002142 William Bright, As Personal Representative Of The Estate Of Ronald Bright vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, January 30, 2004.

Summary: Respondent is required to pay benefits under Option 1 after a Florida Retirement System member died prior to his effective retirement date and selection of a payment option. The estate of the deceased is entitled to one monthly benefit check.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM BRIGHT, AS PERSONAL )

REPRESENTATIVE OF THE ESTATE OF )

RONALD BRIGHT, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2142

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 23, 2003, in Vierra, Florida, before Carolyn S.

Holifield, a designated Administrative Law Judge of the D ivision

of Administrative Hearings.

APPEARANCES

For Petitioner: Wayne L. Allen, Esquire

Wayne L. Allen & Associates, P.A.

700 North Wickham Road, Suite 107

Melbourne, Florida 32935 - 8865

For Respondent: Thomas E. Wright, Esquire

Division of Retirement

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue is whether Petitioner, William Bright, is

entitled to receive retirement benefits of his deceased son,

Ronald Bright.

PRELIMINARY STATEMENT

Ronald Bright was a member of the Florida Retirement System

with approximately 29 years of creditable service. On or about

October 31, 2002, Ronald Bright’s application for regular

disability retire ment was filed with the Department of

Management Services, Division of Retirement (Division). Ronald

Bright died on November 9, 2002, before the Division determined

his eligibility for disability retirement. On November 18,

2002, Petitioner, William Brig ht, executed and, acting as

attorney - in - fact for Ronald Bright, filed an option selection

with the Division, selecting Option 2.

In December 2002, the Division determined that Ronald

Bright was eligible for disability retirement but that the

option selecti on was invalid because it was executed after

Ronald Bright died. By letter dated February 4, 2002, the

Division notified Petitioner that since no valid option

selection was made, no continuing benefit was available.

Petitioner challenged the decision and requested a formal

hearing.

At hearing, Petitioner testified on his own behalf and

called four witnesses, all employees of the Brevard County,

Board of County Commissioners (Brevard County): Frank Abbate,

director of the Human Resources Department; Joa nne Adams, a

supervisor in the Planning Department; Fannie Gray, a supervisor

in the Human Resource Department; and Kathryn Patterson, a

benefits specialist. Petitioner offered 31 exhibits, 30 of

which were admitted. The Division presented the testimony of

Deena Howell, the Division’s disability benefits administrator.

The Division also offered the deposition testimony of Stanley

Colvin, the Division’s benefits administrator; Fredrica Edwards,

a Division benefits specialist; and Kathryn Patterson, a

bene fits specialist with the Brevard County. The Division

offered and had 18 exhibits admitted. Official recognition was

taken of the applicable provisions of Chapters 20, 121, and 709,

Florida Statutes (2001); and Florida Administrative Code Rule

Chapter 60 S.

The proceeding was recorded but no transcript was ordered.

At the conclusion of the hearing, the parties agreed to file

proposed recommended orders on November 28, 2003. Both parties

timely filed Proposed Recommended Orders which have been

considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, William Bright (Petitioner/William Bright),

is the 84 - year - old father and beneficiary of Ronald Bright.

2. Ronald Bright was an employee of Brevard County with

approximately 29.5 years of creditable service in the Florida

Retirement System (FRS), which is administered by the Division.

3. Ronald Bright was diagnosed with lung cancer in

December 2001, and two months later, he underwent surgery to

have a lung removed. Thereaf ter, he received radiation

treatments and chemotherapy.

4. Despite his being diagnosed and treated for cancer,

Ronald Bright was optimistic about his future and continued to

work part - time for the Brevard County Planning Department.

5. In October 2002, Ronald Bright entered the hospital and

underwent further surgery, when it was determined that his

cancer had spread to his colon. After five days in the

hospital, he was placed in intensive care.

6. On October 28, 2002, William Bright first learned fro m

Ronald Bright's doctor that his son was terminally ill. That

same day, Joanne Adams, Ronald Bright's supervisor in the

Brevard County Planning Department, also first learned that

Ronald Bright was terminally ill.

7. Upon learning that his son, Ronald Bright, was

terminally ill, Petitioner requested a meeting with the Brevard

County Human Resources Department (Human Resources) staff to

discuss and apply for disability retirement benefits on behalf

of his son. The meeting was held on October 31, 2002, i n the

office of Human Resources . In addition to Petitioner, Joanne

Adams, Fannie Gray, and other Brevard County staff attended the

meeting.

8. Kathryn Patterson was the primary person in Human

Resources charged with the responsibility for assisting

empl oyees in filing for retirement benefits, including

disability retirement benefits. However, Ms. Patterson did not

attend the October 31, 2003, meeting because she was on leave

that day. In Ms. Patterson's absence, Fannie Gray, who 12 years

before had pri mary responsibility for assisting employees with

retirement applications, provided disability retirement

application forms for Ronald Bright to Petitioner.

9. The package of forms Ms. Gray provided to Petitioner on

October 31, 2001, did not include an FRS - 11o form, Option

Selection Form (FRS - 11o form).

10. During the October 31, 2002, meeting, Petitioner

executed the forms, including the disability retirement

application, that were provided to him. These forms were

completed by Petitioner pursuant to the durable power of

attorney executed by Ronald Bright on March 26, 2003, three

months after he was diagnosed with cancer.

11. On October 31, 2002, Ms. Gray faxed to the Division

the disability retirement application package for Ronald Bright.

The fax cove r sheet contained a handwritten legend that said:

"This is urgent[.] Thank you."

12. On November 4, 2002, Ms. Patterson returned to work

after a short period of leave. Upon her return, she called the

Division and spoke with Frederica Edwards to confirm the receipt

of Ronald Bright's disability application. Ms. Patterson was

informed by Ms. Edwards that only part of the facsimile

transmittal had been received. Apparently, the facsimile

transmittal initially received and filed by the Division

included o nly the signature page of the application, the

facsimile cover sheet, and part of the power of attorney

document. Ms. Patterson then immediately re - sent, by facsimile,

the disability application, the power of attorney, and the

previously - submitted cover s heet with the original handwritten

notation, "This is urgent[.]"

13. The disability application package that was re - sent to

the Division by facsimile on November 4, 2002, did not include

the FRS - 11o form. Although the FRS - 11o form, could have been

filed at the same time as the application, that form was not

required for the Division to determine if Ronald Bright was

eligible for disability retirement.

14. On November 5, 2002, Frederica Edwards sent a letter

to Ronald Bright at his home address informin g him that two

physician statements were required to make a disability

determination. The letter further advised him of items that

would be required if the application was approved, including an

FRS - 11o form. Blank copies of all of the forms mentioned we re

included with the letter.

15. On November 5, 2002, the same day the Division sent

the letter and forms described in paragraph 14, the Human

Resource staff sent, by facsimile, one physician report to the

Division. That physician's report, completed by D r. Acosta

noted that "[T]his patient [Ronald Bright] is terminal." The

following day, November 6, 2002, Human Resources received and

faxed to the Division a second physician's statement which also

attested to Ronald Bright's disability.

16. Ronald Brigh t never received the letter and enclosed

forms sent out by the Division on November 5, 2002, because he

was confined to the hospital, where he remained until his death

on November 9, 2002.

17. On November 14, 2002, Ms. Patterson called Ms. Howell

and inqu ired about the status of the application. Ms. Howell

informed Ms. Patterson that everything needed for a disability

determination had been received. Notice was also given to

Ms. Howell of Ronald Bright's passing. Based on this telephone

conversation wit h Ms. Howell, the Human Resources staff believed

that all information required to process Ronald Bright's

disability retirement application had been received.

18. On or about November 14 or 15, 2002, a few days after

Ronald Bright's death, Petitioner recei ved the November 5, 2002,

letter from the Division and the forms included with it. The

delay in receipt of the letter was because Petitioner had

executed a mail - forwarding directive to the U.S. Postal Service,

effective November 6, 2002, directing that al l mail for his son

be forwarded to Petitioner's residence.

19. Upon receipt of the Division's November 5, 2002,

letter and enclosed documents, Petitioner contacted Human

Resources regarding the FRS - 11o form. As he had done

previously, Petitioner relied on Human Resources for assistance

and guidance in the disability retirement application process.

20. The FRS - 11o form adopted, pursuant to Section

121.091(6), Florida Statutes (2001), provides for four options:

Option 1 provides for full benefits for the life of the member;

Option 2 is a reduced benefit for ten years with those benefits

payable to a beneficiary in the event the member dies before the

end of ten years; Option 3 applies to a deceased member who is

survived by a joint annuitant, which is defi ned in Section

121.021(28), Florida Statutes (2001), as a spouse, or children,

or a parent, or other person over age 25, for whom the member is

the legal guardian and dependent upon the member for over one -

half of his or her support; and Option 4 is applic able if there

is a joint annuitant and the member desires to elect that the

survivor of them would receive a reduced benefit of 66 and 2/3

percent.

21. The FRS - 11o form incorporates the following statements

in its instructions: "What Retirement Option Sho uld You

Choose," which accompany the FRS - 11o form. Under Option 2, it

states:

Option 2 would be particularly appropriate

if you are in ill health and your

beneficiary does not qualify as a joint

annuitant. Anyone can be named as a

beneficiary under Optio n 2, as well as

charities, organizations, or your estate or

trust.

22. Ronald Bright was a single person who had never been

married, had no children, and there was no parent for which he

was legal guardian or who was dependent upon him for support.

Due to his terminal condition and his family status, the only

viable option on the FRS - 11o form was Option 2, if an election

was made.

23. On October 28, 2002, when Ronald Bright knew that his

condition was terminal, in a conversation with Petitioner and

with his supervisor, Ms. Adams, he stated his intent that his

father receive a ten - year payout of his retirement benefits in

the event of his untimely death, which he knew to be imminent.

24. On or about November 18, 2002, after talking to the

Human Resources staff and reviewing the FRS - 11o form, Petitioner

executed the form election, as attorney - in - fact for Ronald

Bright, choosing Option 2 benefits for Ronald Bright, with

Petitioner as beneficiary. Human Resources then sent the

executed FRS - 11o form, by facsi mile, to the Division.

25. The FRS - 11o form executed by Petitioner as attorney -

in - fact, on November 18 or 19, 2002, was invalid as a matter of

law, pursuant to Section 709.08(3)(b), Florida Statutes (2001),

because it was executed after the death of Rona ld Bright.

26. On December 26, 2002, Ronald Bright's application for

disability benefits was approved and his effective retirement

date was November 1, 2002. However, after Ronald Bright's

application was approved, the Division determined that the

FRS - 11o form, was executed after the death of Ronald Bright and

was, therefore, invalid. As a result, no continuing benefit

under Option 2 was available.

27 . On February 4, 2003, the Division officially denied

Petitioner's request for payment of the Option 2 retirement

benefits of Ronald Bright.

28. The Division receives many disability retirement

applications from FRS members that contain the word "Urgent,"

due to the fact that these members have terminated employment

and may have no income. Because of thi s, employees in the

Division's Disability Determination Section process applications

with the notation "Urgent," or similar language, like any other

application.

29. The Division has no rules or procedures that address

or govern expediency in processing d isability applications where

an FRS member is terminally ill. However, when the Division is

notified by telephone, either by a member, a member's family, or

an employer that an applicant is terminal and has only a short

time to live, the Division's Disabi lity Determination Section's

practice is to process that application out - of - order.

30. Because of the Division's practice of disregarding

written notations indicating that a particular application is

urgent, when the disability retirement application of R onald

Bright was faxed to the Division on October 31, 2002, and again

on November 4, 2002, the Division took no special action

regarding the application. Moreover, no special action was

taken based on the physician's statement faxed to the Division

on Nov ember 5, 2002, which noted that Ronald Bright was

terminal.

31. The Division is responsible for administering the

provisions of Chapter 121, Florida Statutes (2001). In

accordance with its duties, the Division, which has over 600,000

members, disseminate s information handbooks and forms regarding

retirement issues to members of the FRS. The Division also

provides forms, information, handbooks, and training regarding

retirement issues to governmental entities whose employees are a

member of the Florida Re tirement System. The Division also

provides governmental employers with various publications, such

as the Employer Handbook and various forms relative to

retirement.

32. The Employer Handbook was provided to and used by

Brevard County. The introduction of the Employer Handbook

contains the following on Page XIII:

TO PAYROLL AND PERSONNEL OFFICERS

You are the key link between the Division of

Retirement and the employees of your

organization to ensure that your employees

receive information from the Divis ion that

informs them of their choices and rights

under the Florida Retirement System (FRS)

and that the permanent retirement records

maintained by the Division are accurate, you

must be thoroughly informed of FRS

procedures. However, as agency

representa tives, you are not agents of the

Division. The Division will be not be

responsible for an erroneous information you

may provide to members.

33. Although the governmental employers are liaisons

between the Division and FRS members, these entities are no t

considered agents of the Division.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the subject matter and of the parties to this

proceeding pursuant to Sections 120.569 and 120.57, Florida

Statutes (2003).

35. Chapt er 121, Florida Statutes (2001), known as the

Florida Retirement System Act, established the Florida

Retirement System. Pursuant to Section 121.1905, Florida

Statutes (2001), the Division is within the Department of

Management Services and is responsible for administering the

provisions of Chapter 121, Florida Statutes (2001).

36. The issue in this case in whether Petitioner, as

beneficiary of his deceased son, is eligible to receive

retirement benefits under Option 2 of the FRS.

37. Petitioner argues that he is entitled to benefits

under Option 2, even though neither Ronald Bright, an FRS

member, nor anyone on his behalf ever completed the FRS - 11o form

prior to Ronald Bright's death. Petitioner contends that the

sole reason the FRS - 11o form was not c ompleted prior to his

son's death was that Human Resources and/or the Division failed

to provide him with the form. Petitioner further argues that

Human Resources, in providing assistance to him in completing

the disability retirement application and advi sing him in

related matters, was acting as an agent for the Division and,

thus, the Division should be barred from denying him benefits

under the principle of equitable estoppel.

38. The Division's position is that no benefit is payable

to Petitioner under Option 2 because prior to Ronald Bright's

death, an FRS - 11o form was not completed by him or on his

behalf. Moreover, the Division disputes the assertion that the

Human Resources or its employees are agents of the Division.

Therefore, the actions, or i n this case the inaction, of

representations of the Human Resources staff could not be

attributable to the Division so as to result in the Division's

being estopped from denying benefits to Petitioner.

39. Petitioner has the burden of proof in this procee ding.

The burden of proof in an administrative proceeding is on the

party asserting the affirmative of the issue unless the burden

is otherwise established by statute. Young v. State, Department

of Community Affairs , 567 So. 2d 2 (Fla. 3d DCA 1990); Flori da

Department of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778

(Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

40. In order to prevail, Petitioner must demonstrate by a

preponderanc e of evidence that he is entitled to monthly

benefits under Option 2 of the FRS. Petitioner has failed to

meet his burden of proof.

41. Pursuant to Section 121.091, Florida Statutes (2001),

"[b]enefits may not be paid under this section unless the member

has terminated employment . . . and a proper application has

been filed in the manner prescribed by the [Division]."

42. Section 121.091(4), Florida Statutes (2001), addresses

"disability retirement benefit[s]" and provides such benefits

for FRS members w ho are vested and become totally and

permanently disabled before reaching normal retirement by virtue

of age or years of service.

43. Prior to approval of disability retirement payments by

the Division, the FRS member must provide proof that they are

to tally and permanently disabled and must include certification

of such disability by two licensed physicians.

§ 121.091(4)(c)1., Fla. Stat. (2001).

44. Pursuant to Florida Administrative Code Rule 60S -

4.007(2)(b), which implements Section 121.091, Florida Statutes

(2001), a proper application for disability retirement must

include documentation attesting that the member was in the

employ of an FRS employer at the time he became disabled.

Additionally, that provision requires that the member submit the

foll owing: (1) the Application for Disability Retirement (Form

FR - 13) to be completed by the member; (2) the Statement of

Disability by Employer (Form FR - 13a) to be completed by the

member's employer; (3) two physician reports (Form FR - 13b) to be

completed by two Florida licensed physicians; and (4) any other

evidence of disability requested by the administrator. See Fla.

Adm. Code R. 60S - 4.007(2)(b)1. through 4.

45. The Division, upon receipt of the completed forms

(Forms FR - 13, FR - 13a, and FR - 13b), is req uired to determine if

the FRS member is totally and permanently disabled. See Fla.

Adm. Code R. 60S - 4.007(2)(d)1. and § 121.091(4)(c), Fla. Stat.

(2001).

46. Florida Administrative Code Rule 60S - 4.0035(4)(a) sets

forth the procedure the Division follows when it receives an

incomplete application and/or needs additional information to

make an eligibility determination and/or to compute the monthly

benefit payment amount. That provision states in relevant part

the following:

(4) When a member's applicat ion for

retirement benefits is received, the

Division will:

(a) Acknowledge the receipt of the

member's application and advise him of any

required information or documents that have

not been received. Such information may

include but is not limited to birthdate

verification, beneficiary designation,

option selection as required by Rule

60S - 4.010, F.A.C. (Emphasis supplied)

47. Section 121.091(6), Florida Statutes (2001), and

Florida Administrative Code Rule 60S - 4.010 address retirement

benefit pa yment options. Those provisions require that a member

who is eligible for a retirement benefit, select one of the four

options prior to receipt of his first monthly benefit payment.

48. Florida Administrative Code Rule 60S - 4.010 provides in

pertinent par t the following:

(1) Prior to the receipt of his first

monthly benefit payment, a member who is

eligible for a retirement benefit . . .

shall select one of the four optional forms

of payment of such benefits, as provided in

paragraphs (a), (b), (c), or (d), on the

appropriate retirement application form as

required in subsection 60S - 4.0035(1),

F.A.C., or the Option Selection for FRS

Members, Form FRS - 11o. . . The four options

are as follows:

(a) Option 1. The maximum retirement

benefit payable to t he member during his

lifetime.

(b) Option 2. A retirement benefit

payable during his lifetime and, in the

event of his death within a period of 10

years after his retirement, the same monthly

amount to be payable to his beneficiary for

the balance of such 10 - year period.

(c) Option 3. A retirement benefit which

shall be payable during the joint lifetime

of both the member and his joint annuitant

and which shall continue after the death of

either during the lifetime of the survivor

in the same amou nt, except as provided in

paragraph 60S - 4.010(1)(e), F.A.C.

(d) Option 4. A retirement benefit

payable during the joint lifetime of the

member and his joint annuitant, and which

shall continue after the death of either

during the lifetime of the survi vor in an

amount equal to 66 2/3 percent of the amount

which was payable during the joint lifetime

of the member and his joint annuitant,

except as provided in paragraph 60S -

4.010(1)(e), F.A.C.

49. Section 121.091(7)(c)2., Florida Statutes (2001),

prescri bes the benefits to be paid when a retiring member dies

on or after the effective date of retirement, when the member

has selected one of the optional forms of retirement and also

when the retiring member has not selected such options. That

section provid es in relevant part the following:

(c) If a retiring member dies on or after

the effective date of retirement, but prior

to a benefit payment being cashed or

deposited, or credited to the Deferred

Retirement Option Program, benefits shall be

paid as fol lows:

* * *

2. For a designated beneficiary who does

not qualify as a joint annuitant, any

benefits payable shall be paid as provided

in the option selected by the member; or if

the member has not selected an option,

benefits shall be paid in the op tional form

of payment provided in subparagraph (6)(a)1.

[Option 1]. (Emphasis supplied)

50. Florida Administrative Code Rule 60S - 4.010(6)(c) also

sets out the manner in which benefits are paid if, as in this

case, a member dies after his effective ret irement date and

without having selected one of the four retirement options.

That rule provides in relevant part the following:

(c) If the member should die after his

effective date of retirement and without

having selected an option, benefits shall be

payable as follows :

1. If the member’s designated beneficiary

does not qualify as a joint annuitant,

benefits shall be paid under option 1 , with

any benefits due from his effective date of

retirement through the month of death

payable to the member’s estate. . . .

(Emphasis supplied.)

51. A "beneficiary" is the "joint annuitant or any other

person . . . designated by the member or other qualified person

to receive benefits, if any, which may be payable . . . in the

event of the death of the member o r other beneficiary."

See § 121.021(46), Fla. Stat. (2001); and Fla. Admin. Code R.

60S - 6.001(8).

52. A joint annuitant may be a member's spouse; a natural

or legally adopted child, who is either under 25 or physically

or mentally disabled and incapable o f self - support regardless of

age; a parent or grandparent; or a person aged 25 or older for

whom the member is the legal guardian, if said person is

financially dependent for no less then one - half of his or her

support from the deceased member at retiremen t, whichever occurs

first. See § 121.021(28), Fla. Stat. (2001), and Fla. Adm.

Code R. 60S - 6.001(33).

53. The evidence established and it is undisputed that

Petitioner, on behalf of his son, applied for disability

retirement. The undisputed evidence als o established that, as

of November 6, 2002, all documentation required by Florida

Administrative Code Rule 60S - 4.007(2)(b) and necessary for the

Division to determine Ronald Bright's eligibility for disability

had been submitted to the Division. Based on that

documentation, the Division properly determined that Ronald

Bright was eligible for disability retirement benefits and, in

accordance with Fla. Adm. Code Rule 60S - 4.0035(3)(b)2.,

correctly determined that Ronald Bright's effective retirement

date was November 1, 2002.

54. There is no dispute that Petitioner is Ronald Bright's

beneficiary within the meaning of the provisions cited in

paragraph 51 above. However, Petitioner has not asserted and

the evidence did not establish that he qualifies as a joint

annuitant, as defined in the provisions cited in paragraph 52.

55. Pursuant to Section 121.091(7)(c)2., Florida Statutes

(2001), and Florida Administrative Code Rule 60S - 4.010(6)(c)1.

quoted above in paragraphs 49 and 50, respectively, if a member

dies af ter his effective retirement without selecting an option,

the Division is required to pay death benefits in accordance

with the provisions of Option 1.

56. Here, it is undisputed that Ronald Bright died after

his retirement date and prior to his or Petit ioner's completing

the FRS - 11o form and, thereby, selecting a payment option.

57. Because no option selection was made before Ronald

Bright died, the Division was required to pay benefits under

Option 1, which provides the maximum retirement benefit paymen t

to the member during his lifetime. In this case, due to Ronald

Bright's death on November 9, 2002, he was entitled to only one

monthly disability retirement check and no benefits were payable

to his beneficiary.

58. Petitioner does not dispute that the results

articulated in paragraph 57 are consistent with the applicable

statutory and rule provisions. However, Petitioner contends

that the Division should distribute retirement benefits

consistent with the provisions of Option 2, which provides a

reduced benefit for ten years with benefits payable to a

beneficiary in the event the member dies before the end of the

ten years.

59. Petitioner argues that the result he seeks is

warranted based on principles of "agency" and of "equitable

estoppel." Petitioner first asserts that Brevard County, as an

employer that participates in the Florida Retirement System, is

an agent of the Division. Next, Petitioner asserts that based

on the Human Resources' failure to provide to Petitioner the

FRS - 11o form, the Division should be estopped from denying

benefits under Option 2. Petitioner contends that Ronald Bright

expressed his desire to select Option 2, knowing that his death

was imminent and that Petitioner would have carried out that

request had he been provided with the form.

60. In addressing the issue of apparent authority, the

Florida Supreme Court, in Almerico v. RLI Insurance Company , 716

So. 2d 774, 777 (Fla. 1998), noted that

Recent cases have applied a three - prong

test under general agency law in order to

determine the existence of apparent agency:

first, whether there was a representation by

the principle; second, whether a third party

relied on that representation; and, finally,

whether the third party changed position in

reliance upon the representation and

suffered detriment. See Warren v.

Department of Admin. , 554 So. 2d 568 (Fla.

5th DCA 1989); Smith v. American Auto Ins.

Co. , 498 So. 2d 448 (Fla. 3d DCA 1986).

61. Here, there is no evidence that the Division ever made

representations to Brevard Coun ty that the County had actual or

apparent authority to act as agent for the Division. On the

contrary, the evidence established that in a booklet distributed

to Brevard County, as well as other employers participating in

the FRS, the Division expressly st ates that such employers are

not agents of the Division. Having failed to prove the first of

the three elements required to establish the existence of

apparent authority, a further analysis regarding the remaining

elements is unnecessary.

62. In order t o prove equitable estoppel, the following

elements must be established: 1) a representation as to a

material fact that is contrary to a later asserted position;

2) a reasonable reliance on that representation; and 3) a change

in position detrimental to th e party claiming estoppel caused by

the representation and reliance thereon. See Warren v.

Department of Administration , 554 So. 2d 568, 570 (Fla. 5th DCA

1989).

63. As noted in paragraph 61, Petitioner failed to

establish that Brevard County, or any of i ts agents, had

apparent agency authority and could act on behalf of the

Division. Therefore, representations, if any, made by Brevard

County to Petitioner are not attributable to the Division and

the doctrine of equitable estoppel is inapplicable to the

D ivision.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Division of Retirement issue a final

order denying benefits to Petitioner under Option 2.

DONE AND ENTERED this 30th day of January, 20 04, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SU NCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of January, 2004.

COPIES FURNISHED :

Wayne L. Allen, Esquire

Wayne L. Allen & Associates, P.A.

700 North Wickham Road, Suite 107

Melbourne, Florida 32935 - 8865

Thomas E. Wright, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

Sarabeth Snuggs, Interim Director

Division of Retirement

Dep artment of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

Alberto Dominquez, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.